Healy v. Halifax (Regional Municipality), 2016 NSCA 47

Nova Scotia Court of Appeal Citation: Healy v. Halifax (Regional Municipality) , 2016 NSCA 47 Date: 20160602 Docket: CA 442776 Registry: Halifax Between: Robert Healy and Anna Healy, Robert F.

Healy Insurance Agency Incorporated, Douglas Tamlyn and Deborah Tamlyn, Tamlyn Construction Limited and Aspen Resources Limited, Donald Saunderson and Eileen Saunderson, Martin Wexler and Cheryl Wexler, Herman Hugenholtz and Beverley Ruth Hugenholtz, Peter Hall, Richard Bendor-Samuel and Stephanie Ouderkirk, Brian Perry and Kelly Skelhorn, Lindsay Hugenholtz, Eric Slone and Catherine Slone, Beverley Sweetman, James Spurr and Valerie Spurr, Robert Daniel Selkirk and Sonja McVeigh, Lara Ryan and Brett Ryan Appellants v.

Halifax Regional Municipality, Halifax Regional Fire and Emergency Service, and The Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Respondents Judge: The Honourable Justice Cindy Bourgeois Appeal Heard: March 31, 2016, in Halifax, Nova Scotia Subject: Civil Procedure Rule 37.04 – extraction of common issue for common trial; considerations

Summary: In April 2009, a forest fire in the Spryfield/Ferguson’s Cove area of the Halifax Regional Municipality resulted in significant property losses. A number of homes were completely destroyed and others which were spared destruction sustained varying degrees of damage. A number of homeowners commenced legal action. In 16 separate actions, the plaintiffs (appellants herein) made identical allegations of negligence and gross negligence against the defendants Halifax Regional Municipality, the Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia.

By way of motion filed June 22, 2015, the plaintiffs sought, relying on Civil Procedure Rule 37.04, two remedies – an order extracting the issue of liability from all actions, to be determined in a common trial; and a direction that the common liability trial be immediately set down for hearing. The motion was dismissed. The appellants challenge that outcome, arguing that the chambers judge mischaracterized the nature of the matters before him, and as such failed to consider the proper application of Rule 37.04 under which the motion was brought.

The appellants asked this Court to grant both requests made in the motion below. Issues:

(1) Should leave to appeal be granted?

(2) Did the chambers judge err in dismissing the motion? Result: Leave to appeal granted. The chambers judge did err in law in dismissing the motion as it related to the request for a common trial. The chambers judge misunderstood the procedural status of the matters before him – being of the erroneous belief that a common trial on liability had been agreed. It was not. The chambers judge accordingly failed to consider the first aspect of the motion – whether the issue of liability in all 16 actions should be heard together.

Further, the chambers judge failed to consider the application of Rule 37.04 at all, and inappropriately framed the matter as one solely of severance. Appeal allowed. A common trial on liability was ordered. The appellants’ request that this Court direct the immediate setting down of the common liability trial was declined, it being a decision best left to the case management judge. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 16 pages. Nova Scotia Court of Appeal Citation: Healy v.

Halifax (Regional Municipality) , 2016 NSCA 47

Date: 20160602 Docket: CA 442776 Registry: Halifax Between: Robert Healy and Anna Healy, Robert F.

Healy Insurance Agency Incorporated, Douglas Tamlyn and Deborah Tamlyn, Tamlyn Construction Limited and Aspen Resources Limited, Donald Saunderson and Eileen Saunderson, Martin Wexler and Cheryl Wexler, Herman Hugenholtz and Beverley Ruth Hugenholtz, Peter Hall, Richard Bendor-Samuel and Stephanie Ouderkirk, Brian Perry and Kelly Skelhorn, Lindsay Hugenholtz, Eric Slone and Catherine Slone, Beverley Sweetman, James Spurr and Valerie Spurr, Robert Daniel Selkirk and Sonja McVeigh, Lara Ryan and Brett Ryan Appellants v.

Halifax Regional Municipality, Halifax Regional Fire and Emergency Service, and The Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Respondents Judges: Scanlan, Oland and Bourgeois, JJ.A. Appeal Heard: March 31, 2016, in Halifax, Nova Scotia Held: Leave to appeal granted and appeal allowed, per reasons for judgment of Bourgeois, J.A.; Scanlan and Oland, JJ.A. concurring Counsel: Philip M. Chapman and Vanessa LeBlanc, for the appellants Michael E.

Dunphy QC and Sandra Arab Clarke, for the respondents Halifax Regional Municipality and Halifax Regional Fire and Emergency Service Michael Pugsley QC and Sheldon Choo, for the respondent Attorney General of Nova Scotia (watching brief) Reasons for judgment: Introduction [ 1 ] In April 2009, a forest fire in the Spryfield/Ferguson’s Cove area of the Halifax Regional Municipality resulted in significant property losses. A number of homes were completely destroyed and others which were spared destruction sustained varying degrees of damage. [ 2 ] A number of homeowners commenced legal action.

In 16 separate actions, the plaintiffs (appellants herein) made identical allegations of negligence and gross negligence against the defendants Halifax Regional Municipality, the Halifax Regional Fire and Emergency Service and the Attorney General of Nova Scotia.

By way of motion filed June 22, 2015, the plaintiffs sought, relying on Civil Procedure Rule 37.04, two remedies – an order extracting the issue of liability from all actions, to be determined in a common trial; and a direction that the common liability trial be immediately set down for hearing. [ 3 ] The motion was heard by the case management judge, Justice Arthur Pickup, on July 9, 2015, and dismissed with oral reasons the same day. The appellants challenge that outcome.

Although acknowledging the deference owed to the chambers judge, the appellants assert he mischaracterized the nature of the matter before him, and as such, applied the wrong legal test in deciding the motion. [ 4 ] For the reasons which follow, I would grant leave and allow the appeal.

The Motion [ 5 ] The appellants’ Notice of Motion clearly made two requests of the court: . . .[T]he Plaintiffs in these proceedings move under Civil Procedure Rule 37.04 for an order that: 1. the issue of the Defendants’ liability for the alleged damages incurred by the various Plaintiffs in Hfx No. 328081, 328082, 328084, 328086, 328092, 328093, . . .(the “Actions”), the basis for which liability is alleged in each of the Actions’ Statements of Claims at paragraphs 2 through 32, is an issue common to all Actions and shall therefore be tried at a single common trial (the “Liability Trial”), the findings from which Liability Trial shall serve as a binding determination of the Defendants’ liability to the Plaintiffs in each of the Actions. 2. the Liability Trial shall take place so soon as is practical and in any event before any further pre-trial or trial proceedings relating

to the quantum of the Plaintiffs’ damages occurs, unless the parties agree otherwise. [ 6 ] At this point, a review of the relevant Rule is helpful. Civil Procedure Rule 37.04 provides: 37.04(1) A judge may order common issues in two or more proceedings be tried, or heard, together.

(2) The judge who orders the trial, or hearing, together of common issues may provide times for the trial, or hearing, of the issues that are to be tried, or heard, separately. [ 7 ] The appellants’ motion was supported by the affidavits of counsel, which served to outline the history of the proceedings. In opposing the motion, the respondents HRM and HRFES also filed affidavit evidence. The respondent AGNS took no position on the motion, nor on this appeal.

As such, further references to “the respondents” include solely the municipality and fire service. [ 8 ] Both the appellants and respondents made the chambers judge aware that an earlier motion had been heard by Murphy, J. The appellants characterized that earlier motion (the “Murphy motion”), although similar, as being distinct from the one before the court.

The respondents argued that the two motions were identical, and the appellants were simply making a second attempt to obtain the remedy denied earlier. [ 9 ] In their arguments before the chambers judge, both parties extensively referenced the transcript of the Murphy motion. As will become apparent shortly, the chambers judge clearly took note of some, but perhaps not all, of the contents of that transcript. [ 10 ] On the motion below, the appellants argued that it made eminent sense that the issue of liability, identical in all 16 matters, be determined in a common trial.

Counsel noted that Rule 37.04 was a new addition to the 2009 Rules and that it added something new to the traditional concepts of consolidation and severance. Unable to find any authorities relating directly to the application of Rule 37.04, the appellants submitted that the chambers judge, in considering the motion, ought to apply “common sense” in keeping with the objectives found in Rule 1.01.

Although those submissions related to the first remedy sought, a common liability trial, it was the second request relating to the timing of the proposed common liability trial which occupied the bulk of the appellants’ submissions to the chambers judge. [ 11 ] It was this second aspect which constituted almost the entire focus of the respondents in opposing the motion. They argued strenuously against any delay in the advancement of the damages aspect of the claims. They characterized the motion before the court as one of severance, and argued that the principles relating thereto ought to apply.

The respondents submitted that they were entitled to have the issues of liability and damages tried together, and that the appellants had failed to establish that severance was justified. [ 12 ] The chambers judge adopted the position advanced by the respondents, specifically noting that the motion was seeking, in essence, severance. The chambers judge said: . . .Therefore, the case law on severance is relevant.

I’m satisfied that, according to case law, the general rule is that all issues in a proceeding should be tried together except that in an exceptional case severance of liability and damages would be awarded. [ 13 ] Later he concludes: In my opinion the most expeditious way to proceed is the status quo. I’m not satisfied that the Plaintiffs have discharged their burden such that this Court should deviate from the general rule that the issues of liability and damages should be tried together.

The liability issue will take some time to proceed to trial, and I am satisfied that this would – should allow the Plaintiffs sufficient time to document their damages. The key, in my view, to the most efficient manner of proceeding is to deal with both liability and damages and for the Plaintiffs to provide their damages evidence in a timely fashion. The parties have already agreed to deal with the issue in liability in all cases together, to have common discoveries and a common trial on liability .

To proceed as the Plaintiffs propose will, in my view, lengthen the proceedings and is not the most efficient and just way to proceed. The Plaintiffs’ motion is dismissed. [Emphasis added] [ 14 ] The sentence bolded above is central to the outcome of this appeal.

Issues [ 15 ] In their Notice of Application for Leave to Appeal and Notice of Appeal, the appellants allege: That the Chambers Judge erred in law by: a. applying the wrong test or the wrong principles under Rule 37.04 by limiting his analysis to, or by otherwise placing undue emphasis on, the principles governing severance of liability from damages; b. failing to consider relevant factors, considering irrelevant factors, and by not placing proper weight on factors that supported an order under Rule 37.04; c. misapprehending the evidence before him regarding the parties’ readiness for trial and regarding damage document production by the plaintiffs; d. incorrectly formulating and applying the test of severance of liability from damages; e. making a decision that was unreasonable and clearly wrong in the context of the evidence before him; and

f. such further and other grounds as may appear. [ 16 ] In my view, the issues before the Court can be condensed to two: (

a) Should leave to appeal be granted? (

b) Did the chambers judge err in dismissing the motion? Standard of Review [ 17 ] The first issue does not engage a traditional standard of review analysis, but rather is determined on first instance. The test to be applied is not controversial. The appellants must raise an arguable issue, one that could result in the appeal being allowed. See for example, Sydney Steel Corporation v. MacQueen , 2013 NSCA 5 ; Abbott and Haliburton Company v. WBLI Chartered Accountants , 2013 NSCA 66 , and Burton Canada Company v. Coady , 2013 NSCA 95 . [ 18 ] The second issue relates to a discretionary decision.

Again, the law is well settled. This Court will only intervene if, in dismissing the appellants’ motion, the chambers judge clearly erred in law or the outcome results in a patent injustice. See Nova Scotia v. Rou é , 2013 NSCA 94 and Innocente v. Canada (Attorney General) , 2012 NSCA 36 . [ 19 ] The respondents argued that even more deference is due in this instance by virtue of the decision-maker here being a case management judge. They rely in particular on this Court’s earlier decisions in Fraser v. Westminer Canada Ltd. , 1998 NSCA 141 and Jones Power Co. Ld. v.

Mitsui & Co. (Point Aconi) Ltd. , 1999 NSCA 39 . These cases do say that a case management judge should be afforded greater deference in procedural decisions, given their enhanced knowledge of the file. In my view, however, these authorities do not change the standard of review set out above. An error of law is no less of an error because it was made by a case management judge, nor is a patent injustice rendered tolerable. See Mitsui, supra, at ¶ 13-15. Analysis (

a) Should leave to appeal be granted? [ 20 ] I am satisfied the appellants have raised an arguable issue. As such, I would grant leave to appeal. (

b) Did the chambers judge err in dismissing the motion? [ 21 ] As noted earlier, given the nature of the decision, the chambers judge is owed deference. I am satisfied, however, that the chambers judge was operating under a misapprehension as to the procedural status of the matter before him. This led him to ignore the first aspect of the motion, including the proper application of Rule 37.04, and to apply the wrong lens to the remainder. This constitutes an error of law justifying intervention.

I will explain. [ 22 ] I return to the chambers judge’s conclusion noted earlier, and in particular, the bolded aspect thereof. The chambers judge approached the motion with the view that the parties had agreed “to a common trial on liability” – he said as much. That, however, is simply not the case. It is not borne out by the materials before the court below, or those before this Court. The chambers judge did not address the first aspect of the motion – whether the issue of liability in all 16 actions should be heard together – presumably because he thought this had already been agreed.

In my view, this error also explains the lack of analysis regarding the Rule under which the motion was advanced – Rule 37.04. [ 23 ] At the beginning of the motion hearing, the following exchange demonstrates the chambers judge’s understanding of the procedural status of matters, and the outcome of the earlier Murphy motion: THE COURT: Yeah, okay. I thought Justice Murphy had said that in his -- that's why -- maybe why I was a bit confused. Let me just see if I can find that. I just can't put my finger on --- MR. DUNPHY: My Lord, I think Mr.

Chapman and we are in agreement that we've all, implicitly through our discussions, felt that there'd only be one liability trial, there wouldn't be 16 liability trials. THE COURT: Yeah, that's what I'm trying to get at. MR. DUNPHY: Yeah. So, that's implicitly been agreed. It's not been formulated in an order or anything like that. THE COURT: But that's almost a consolidation, isn't it? MR. DUNPHY: Yes.

THE COURT: Yeah, that's what I'm getting at. So, there was agreement that there would be common discoveries and that all 16 Plaintiffs would be dealt with at once in a trial on the liability? MR. DUNPHY: Yeah, on liability, and the issue --- THE COURT: Yeah, yeah, more or less an informal consolidation? MR. CHAPMAN: Well, not really, My Lord. I mean, consolidation would -- there are still 16 different actions. THE COURT: Yeah. MR. CHAPMAN: But, you know, if you want to use the word "consolidate", yeah, I mean it's the same thing. THE COURT: Yeah, okay.

I just raised it because Justice Murphy said that and nobody took exception to it, because that was part of his -- you know, that all 16 -- the parties had agreed that all 16 would be dealt with at the same time in a common trial and that there would be common discoveries on liability. That was my understanding. [Emphasis added] [ 24 ] On several other occasions, the transcript shows the chambers judge similarly referencing the existence of a “common trial” on liability. In fairness, it is understandable why he may have held that view.

Both in the transcript of the Murphy motion, and before him, the respondents asserted that an agreement had been reached for a common trial. In fact, it is apparent that at least initially, Justice Murphy held the same belief and was prepared to include such a direction in an order. However, on the earlier motion, the respondents pointedly corrected the court’s misunderstanding.

The following exchange is instructive: MURPHY, J.: … But consolidation would certainly facilitate things from an administrative point-of-view here and you’ve essentially consolidated the liability and I don’t see how consolidation would impair you on on keeping your options open to go on damages, either at the same time as liability or immediately after or independently. But that’s just an observation. You haven’t asked to do that and I won’t do it. Although whether you want an Order putting in the paragraphs I guess it would be two and three in the draft Order provided by Mr.

Chapman that: “With respect to liability, all pre-trial procedures included but not limited to Discovery and disclosure of documents and electronic information shall for one action be considered to be undertaken for all actions. And No. 2 that the trial and liability for all Plaintiffs against the Defendants in all actions shall be tried and heard together.” I wouldn’t have any problem putting those things in an Order if the parties wanted to do it. It’s part of the Order that was submitted in the draft that was provided.

But beyond that I’d be doing more than you asked for and I reiterate that my Decision doesn’t prevent the matter being addressed further as matters proceed. But right now it’s premature to sever. MR. DUNPHY: My Lord, I’ll just comment on the Order. I submit that what should be done is merely that the motion be dismissed. Parties have agreed between themselves how we’re proceeding with these Discoveries. We can discuss after this motion whether we wish to collectively either agree to consolidation of the whole matter, liability and damages subject to a right later on of any party to seek severance.

But there has been no determination about any type of consolidation regarding liability and there’s just merely been an agreement that

the Discoveries that are going to take place can be used for all of the liability trials or all of the liability claims. [Emphasis added] And further: MURPHY, J.: Well they’re a little – here I can show you what I’ve got. Probably easiest. This is the draft Order. There was only one submitted wasn’t there, Mr. Chapman? And I guess – I mean where I’m coming from is Mr. Chapman has come to court and he’s asked for an Order on that basis if the court has – why would the Court not grant that if you’ve agreed to it. If you haven’t agreed to it then fair enough but – MR.

DUNPHY: No, I don’t think I’ve agreed to that, My Lord. MURPHY, J.: What is it that you disagree about paragraphs 2 and 3? MR. DUNPHY: I think that last paragraph – MURPHY, J: That the trial on liability for all Plaintiffs against the Defendants in all actions shall be tried and heard together. MR. DUNPHY: That’s right. I have not agreed to that in isolation. I have indicated to Mr.

Chapman that what we envision is at some point in time we will be looking and agreeing to the idea that these things will have to be either tried together or all of the evidence apply to each other. [Emphasis added] [ 25 ] Counsel for the respondents clearly advised Murphy, J. that, notwithstanding earlier arguments suggesting otherwise, the parties had not agreed that there would be a common liability trial: MR. DUNPHY: Well I’m being fairly precise on that, My Lord.

I don’t – my belief – and I’d have to review correspondence is my belief is that I agreed that all pre-trial procedures, i.e., Discoveries and in particular List of Documents, etc. will apply to all liability cases. In other words we’ll only have one List of Documents, we’ll only have one set of Discoveries on liability. I have also indicated that we do not envision that we’re going to have 18 different trials on liability. And I’ve also indicated we would envision that liability would be dealt with at one time. That’s what – but in correspondence I’ve said that. THE COURT: Okay. MR.

DUNPHY: But I have not agreed to any consolidation of liability. I’ve – which that effectively could be interpreted as. [Emphasis added] [ 26 ] In their written submissions to this Court, the respondents confirm that the “status quo” at the time of the motion under appeal was, and remains, 16 separate actions. They write: 66. At the time of this motion, the “status quo” was (and continues to be) that:

a) there are 16 separate actions which have not been consolidated;

b) the damages component of each action is to be developed in tandem with the liability issue in terms of pre-trial procedures, including document exchange and discovery, which is the norm; and

c) the pre-trial procedures with respect to damages are not put “on hold” pending resolution of the liability issue. [Underlining in original] [ 27 ] Justice Pickup did not have the benefit of the same level of clarity. In their submissions before him, the respondents repeatedly implied that it had already been determined that there would be a single trial on liability, and the purpose of the motion was to sever damages therefrom:

MS. ARAB CLARKE: … Mr. Chapman has alluded to us somehow trying to create some kind of an unfair advantage, he said that to Justice Murphy three years ago, and he's saying that we're here just to try and drive up their costs, he's said that several times in his brief. My Lord, we're not driving up any costs, we're expecting what the rules expect, we're expecting that this thing get litigated at one time and that we don't have to be carving this all up. … My Lord, we talked about this motion being for severance and not for consolidation, and that is the case.

In our brief what we've done is we've referred you to a number of cases -- I think three cases -- which I say dispel the notion that it's impracticable to deal with the issues all at the same time. As you know, My Lord, and as you referred to, we have had an agreement, an implicit agreement, that there's only going to be one liability trial, the liability issues aren't going to be adjudicated 16 times, so we know that's going to happen. … THE COURT: Can I just get you to go back a minute to your comment that this is really all about severance. MS. ARAB CLARKE: Yeah.

THE COURT: You don't think it also concerns consolidation? MS. ARAB CLARKE: I don't think it does, My Lord, at this point. THE COURT: Okay. MS. ARAB CLARKE: I mean, it's -- we've already effectively done it with regard to liability, so what he's asked for is consolidation of the liability issue and severance of damages from liability.

Well, effectively we have consolidated the liability issue, not formally but we have proceeded with that in mind. [ 28 ] Throughout his decision, it is clear that the chambers judge was of the view that there was just one liability trial and that the motion before him was about severing damages from it.

Again, some examples are helpful: THE COURT: The essence of the Plaintiffs' motion is to sever the issue of damages from the issue of liability and to postpone pre-trial proceedings with respect to damages until conclusion of a trial on liability. … I'm satisfied that, according to case law, the general rule is that all issues in a proceeding should be tried together except that in an exceptional case severance of liability and damages would be awarded. … I adopt, for the most part, the submission of the Defendants on this issue. Let me explain.

Firstly, I'm not persuaded that there is sufficient evidence before me to conclude that the trial of this matter will be delayed if the issues of liability and damages are heard together. … [Emphasis added] [ 29 ] The chambers judge was operating under a material misapprehension. This served to shift his focus away from one of the primary purposes of the motion – whether a common trial on liability for 16 separate actions was appropriate – and caused him to assess the motion as if that had already been achieved.

The result was that the chambers judge failed to consider Rule 37.04 at all; failed to consider the first prong of the motion; and decided the second prong – the request to delay damages – not fully appreciating the status quo. [ 30 ] In light of these findings, what should this Court do? This Court is well placed to consider and decide the first aspect of the appellants’ motion. The same cannot be said for the second. At this juncture, a few words about Rule 37.04 are warranted. For ease of reference, I set it out again: 37.04

(1) A judge may order common issues in two or more proceedings be tried, or heard, together.

(2) The judge who orders the trial, or hearing, together of common issues may provide times for the trial, or hearing, of the issues that are to be tried, or heard, separately. [ 31 ] The concepts of consolidation and severance are found in Rules 37.02 and 37.05 respectively. They provide: 37.02 A judge may order consolidation of proceedings if the proceedings to be consolidated are of the same kind, that is to say, actions, applications, applications for judicial review, or appeals, and one of the following conditions is met:

(

a) a common question of law or fact arises in the proceedings; (

b) a same ground of judicial review or appeal is advanced in the applications for judicial review or appeals and the ground involvesthe same or similar decision-makers; (

c) claims, grounds, or defences in the actions or applications involve the same transaction, occurrence, or series of transactions oroccurrences; (

d) consolidation is, otherwise, in the interests of the parties. … 37.05 A judge may separate parts of a proceedings for any of the following reasons: (

a) a party joined a party or claim inappropriately; (

b) although appropriately joined in the first place, it is no longer appropriate for the party or claim to be joined with the rest of theparties and claims in the proceeding; (

c) the benefit of separating the party or claim from another party or claim outweighs the advantage of leaving them joined. [32] The appellants argue that Rule 37.04 is intended to bring something new to the procedural toolbox – something different thanthe more traditional concepts noted above. I agree. [33] A review of the rules of court elsewhere in the country demonstrates that Rule 37.04 is unique. Although the extraction of acommon issue from multiple proceedings for a single trial may be achievable in other jurisdictions, Nova Scotia appears to have the solestandalone rule specifically contemplating such.

Rule 37.04 is a response to the growing complexity of litigation, and the increasingnumbers of multiple actions with overlapping, but not identical parties, factual scenarios, or legal issues. It is intended to addresssituations not quite suitable for a total consolidation, but where the existence of common issues makes keeping proceedings entirelyseparate unwise, unwieldy or unjust. [34] This new rule is brief. It does not contain guidance with respect to its application. There are no case authorities which have, asyet, attempted to articulate the parameters of its application.

I do not intend to articulate a “test” for motions brought under Rule 37.04 –it is likely impossible to do so with any degree of precision. This is due in great part to the multitude of situations where the uniquecircumstances of two or more matters might give rise to parties seeking a common hearing on a common issue. I do, however, offergeneral observations. [35] An order issued under Rule 37.04 is, in my view, fundamentally akin to a consolidation, albeit a partial one. As such, it isappropriate to consider principles governing that remedy.

Although many cases have articulated a series of factors for consideration in aconsolidation motion, the overarching consideration has been, and continues to be, what is “just” between the parties. See for exampleStone v. Raniere (1992), (NS SC), 117 N.S.R. (2d) 194, and the many cases in which it has been followed. Determining what is “just” may be aided by the court considering certain factors, but should not be dictated by a rigid set of criteria.

Perhaps what may not be “just” for a total consolidation, may be “just” for the extraction of a common issue. [36] Although I consider the chambers judge here to have erred by considering the motion before him to be solely one of severance,there is a place for severance principles when a motion under Rule 37.04 is considered. The by-product of extracting a common issue fora common trial, is to sever that issue from the others remaining in the proceedings from which it came.

There may well becircumstances where a party may convincingly argue that severance of an issue, notwithstanding its commonality across otherproceedings, is not just and convenient in the circumstances. [37] As an aside, there was debate before this Court whether the chambers judge applied the appropriate test for severance. Theappellants allege the chambers judge erred by requiring “exceptional circumstances” in order to justify the severance of liability from theassessment of damages.

The outcome of this appeal does not turn on that particular point; however, older authorities which articulatedsuch a standard have long been replaced with a more modern view. Courts should now ask not whether a moving party has shown“exceptional circumstances” justifying severance, but rather whether such is “just and convenient” considering the entirety of thecircumstances. See Rajkhowa v. Watson, 2000 NSCA 50. [38] Clearly, the thread weaving its way through the above comments is the concept of what is just and convenient.

This should notbe confined, however, to what is just and convenient to the parties themselves, but also more broadly to the administration of justice. When asked to consider extracting a common issue from multiple proceedings for a single trial, there is also a place for the considerationof concepts such as judicial economy and the efficient management of scarce resources. Further, the administration of justice would notbe well-served where common issues, if determined in separate proceedings, produced inconsistent results. In Jeffrie v.

Hendriksen,2011 NSSC 351, Rosinski, J. identified the risk of substantially different findings and/or outcomes in substantially similar proceedings,as a factor favouring consolidation. The same consideration ought to apply, where applicable, to motions under Rule 37.04. [39] Before this Court, the respondents continued to assert that there had been an agreement that there would be only one trial toaddress the issue of liability in all 16 actions. Yet, they argued against that being put in an order. With respect, the respondents cannothave it both ways.

If it is “agreed” that there is to be one trial on liability, then the respondents cannot continue to assert that the status

quo is 16 separate actions. What is helpful about the respondents’ submissions, however, is that they acknowledge the inappropriateness of contemplating 16 separate liability trials. They, like the appellants, readily agree that given the commonality of the parties and evidence relating to liability, that issue should be determined only once.

When questioned by this Court, the respondents advised they would not be prejudiced in any way by having one determination of liability apply in all actions. [ 40 ] I am satisfied that in the circumstances before the Court, it is just and convenient to have the issue of liability in all 16 actions heard in one common trial. The outcome of that proceeding will be determinative in all 16 actions. The end-result is that the 16 actions remain procedurally, but include only the damage claims.

Liability from all 16 matters will now be determined by way of a separate common trial. [ 41 ] Obviously, the respondents’ acknowledgement that multiple liability trials would be unwarranted was helpful in reaching this conclusion. Also, the commonality of parties and counsel, identical allegations of negligence, and that all 16 actions had advanced to the same stage of litigation were important considerations.

Most important in my view, however, is that it would be entirely untenable to have in the circumstances here, multiple cases proceed to trial on liability with the possibility of differing outcomes. [ 42 ] I turn now to the second aspect of the appellants’ motion – the timing of the common liability trial. Before the chambers judge, and this Court, the appellants argued forcefully for having the common issue of liability determined in advance of the 16 assessments of damages. The respondents vehemently opposed that for the reasons referenced earlier herein.

The appellants urge this Court to direct the immediate setting down of the common liability trial. I am not prepared to do so. [ 43 ] In my view, how and when the common liability trial is heard should be returned to the court below for its consideration. These are complex proceedings which are being case managed by a single judge. Now that it is clear that a common liability trial will take place, further trial management is best left to the case management judge. There are multiple possibilities which may flow from the creation of a common trial.

Perhaps the liability trial will be determined first, but many other options are conceivable. The case management judge, upon further motion of the parties, is in the best position to assess what is appropriate in the circumstances. Conclusion [ 44 ] I would grant leave to appeal and allow the appeal.

I direct that the common issue of liability in all 16 actions, namely Hfx Nos. 328081, 328082, 328084, 328086, 328092, 328093, 328094, 328095, 328096, 328097, 328098, 328099, 328100, 328101, 328105, and 333639, be heard in a common trial, the finding from which is binding in all matters. [ 45 ] Further scheduling and case management of the common liability trial and 16 damage actions remains the responsibility of the case management judge. [ 46 ] Costs of $1,200 were awarded against the appellants payable forthwith in the court below. These are to be reversed, with $1,200 now payable by the respondents.

On the appeal, I order costs of $2,000, all-inclusive, payable by the respondents. Bourgeois, J.A. Concurred in: Scanlan, J.A. Oland, J.A.